Rights to redress & state accountability: responding to violence against sexual minorities in Africa
During this 54th session of the United Nations Commission on the Status of Women on the occasion of the 15+year review of the Beijing Declaration and Platform, the Coalition of African Lesbians (“CAL”) reinforces that: LGBTI rights are human rights, that we are not claiming or asking for “special” or “additional” rights BUT that we call on our African governments to condemn the violence perpetrated against sexual minorities, to refrain from engaging in this violence and to take all measures to ensure the protection of sexual minorities, in particular, lesbian and transgender women subjected to violence.
1. On 21 November 2008, the National Assembly of Burundi for the first time in the country’s history passed a law making same-sex acts punishable between 3 months and two years in prison, along with a substantial fine. This is in addition to the enactment of legislation criminalizing same-sex marriage.
2. On September 25, 2009, legislation was introduced in the Ugandan Parliament entitled the ‘‘Anti-Homosexuality Bill, 2009’’ to strengthen and expand existing Anti-Homosexuality laws to prohibit any form of sexual relations between persons of the same sex; if passed into law provides for death sentence for homosexual offenders.
3. On 18 February 2010 in Zambia, the National Constitutional Conference (“NCC”) adopted a clause introduced by the Human Rights Committee of the NCC that expressly prohibits same-sex marriage. In support of this prohibition, the Southern Province minister Daniel Munkombwe argued that “even animals did not go for those of the same sex and wondered why human beings could lower themselves to a level below animals if animals went for the opposite sex.”
4. In South Africa in 2006, at a public address of traditional leaders in Kaw-Zulu Natal, President Jacob Zuma said: “Same-sex marriage is a disgrace to the nation and to God. When I was growing up, unqingili [homosexuals in the Zulu language] could not stand in front of me. I would knock him out”.
5. In July 2008, the Sunday World published an article by John Qwelane accompanied by a cartoon depicting homosexual as animals getting married and equating homosexual sexual orientation to bestiality. In January 2010, the South African government proposed the appointment of John Qwelane as Ambassador to Uganda. The brutal murders of Eudy Simelane and Girly Nkosi have gained national attention. They represent however only a fraction of the physical and sexual violence, the prejudice and the hate that LGBTI people in South Africa are confronted with on a daily basis.
6. In Kenya, a network called “Operation Gays Out” has been initiated to kill human rights defenders and assault people suspected of being gay.
7. In Rwanda, two women en route to a leadership institute organized by the Coalition of African Lesbians were detained at the Kigali International Airport and then held in cells for two and a half weeks without any charges. Their passports are still being held by Rwandan migration officers.
The criminalization of sexual orientation and gender identity has grave consequences for the inability of sexual minorities to access to health and legal services. In South African, HIV programmes do not necessarily respond to same-sex sexuality or address the particular vulnerabilities experienced by sexual minorities. In countries such as Uganda, we have received reports that most medical practitioners refuse to treat people who identify as gay or lesbian because homosexuality is illegal and they consider it a sin. The government of Rwanda directly linked HIV/AIDS to homosexual conduct and has called on citizens to exercise “good morals among Rwandans to help control the HIV prevalence rate”.
The Yogyakarta Principles, adopted in 2007 acknowledge human rights violations based on sexual orientation and gender identity and establish the relevant legal framework for articulating and responding to these rights violations. In our context, and as articulated by the Principles, the above-mentioned incidents, governments failure to protect sexual minorities and most significantly following, governments legislative and other initiatives aimed at criminalizing homosexual identity violate the following rights:
i) The rights to universal enjoyment of human rights, non-discrimination and recognition before the law are violated when laws are introduced which criminalize the adult consensual homosexual conduct;
ii) The fundamental rights to life, freedom from violence and torture, privacy, access to justice and freedom from arbitrary detention as entrenched in the UN Convention on the Prohibition of Torture, Cruel, Inhuman and Degrading Treatment and the International Covenant on Civil and Political Rights.
iii) The rights to expression, opinion and association which emphasize the importance of the freedom to express oneself, one’s identity and one’s sexuality, without State interference based on sexual orientation or gender identity, including the rights to participate peaceably in public assemblies and events and otherwise associate in community with others.
iv) On the rights of Human Rights Defenders, principle 27 recognizes the right to defend and promote human rights without discrimination based on sexual orientation and gender identity, and the obligation of States to ensure the protection of human rights defenders working in these areas.
v) In respect of the rights to redress and accountability, principles 28 and 29 affirm the importance of holding rights violators accountable, and ensuring appropriate redress for those who face rights violations.